Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On Introduction of the USA FREEDOM Act of 2013
October 29, 2013
The Foreign Intelligence Surveillance Act, or FISA, was enacted 35 years ago to limit the government’s ability to engage in domestic surveillance operations. In the years since September 11, 2001, Congress has repeatedly expanded the scope of this law to provide the government with broad new powers to gather information about law-abiding Americans. No one underestimates the threat this country continues to face, and we can all agree that the intelligence community should be given necessary and appropriate tools to help keep us safe. But we should also agree that there must be reasonable limits on the surveillance powers we give to the government. That is why I have consistently fought to curtail the sweeping powers contained in the USA PATRIOT Act and FISA Amendments Act, while also bolstering privacy protections and strengthening oversight. And that is why I continue my efforts today by joining with Congressman Jim Sensenbrenner, as well as members of Congress from both political parties, to introduce the bipartisan USA FREEDOM Act of 2013.
Over the past several months, Americans have learned that government surveillance programs conducted under FISA are far broader than previously understood. Section 215 of the USA PATRIOT Act has for years been secretly interpreted to authorize the dragnet collection of Americans’ phone records on an unprecedented scale, regardless of whether those Americans have any connection to terrorist activities or groups. The American public also learned more about the government’s broad collection of Internet data through the use of Section 702 of FISA. And the world has learned that this surveillance has extended to millions of individuals in the global community, including some of our allies and their leaders. These revelations have undermined Americans’ trust in our intelligence community, and harmed our relationships with some of our most important international partners.
While I do not condone the manner in which these and other highly classified programs were disclosed, I agree with the Director of National Intelligence that this debate about surveillance needed to happen. It is a debate that some of us in Congress have been engaged in for years. Since this summer, the Judiciary Committee convened two public hearings and a classified briefing with officials from the administration, including the Director of National Intelligence, the Director of the National Security Agency, and the Deputy Attorney General.
As a result of these hearings and the recent declassification of documents by the administration, the public now knows about the repeated and substantial legal and policy violations by the NSA in its implementation of both Section 215 and Section 702. The public now knows that, in addition to collecting phone call metadata on millions of law-abiding Americans, the NSA collected, without a warrant, the contents of tens of thousands of wholly domestic emails of innocent Americans. The NSA also violated a FISA Court order by regularly searching the Section 215 bulk phone records database without meeting the standard imposed by the Court.
These repeated violations, which have occurred nearly every year that these programs have been authorized by the FISA Court, led to several reprimands from the FISA Court for what it called “systemic noncompliance” by the government. In addition, the Court admonished the government for making a series of substantial misrepresentations to the Court about its activities. The NSA has assured Congress that these problems have been corrected. Yet with each new revelation in the press about new techniques developed by the NSA that intrude into the privacy and everyday lives of Americans, I grow increasingly concerned about the lack of sufficient oversight and accountability.
Last week, the Assistant to the President for Homeland Security and Counterterrorism, Lisa Monaco, stated that the government should only collect data “because we need it and not just because we can.” I completely agree – and that is why the government’s dragnet collection of phone records should end. The government has not made a compelling case that this program is an effective counterterrorism tool, especially when balanced against the intrusion on Americans’ privacy. In fact, both the Director and the Deputy Director of the NSA have testified before the Judiciary Committee that there is no evidence that the Section 215 phone records collection program helped to thwart dozens or even several terrorist plots.
It is clear that as the administration has become more open and forthright about these programs, the facts have not matched the rhetoric. It is time for serious and meaningful reforms to FISA in order to restore the confidence of the American people in our intelligence community. Modest transparency and oversight provisions are a good first step, but by themselves they are insufficient to protect the privacy rights and civil liberties of Americans. We must do more.
The USA FREEDOM ACT is a legislative solution that comprehensively addresses a range of surveillance authorities contained in FISA. I want to thank Congressman Sensenbrenner for his dedicated work on this bipartisan, bicameral piece of legislation that we are introducing today. We are joined in this effort by members of Congress from both chambers and across the political spectrum, and I want to thank the following Senators for cosponsoring this legislation: Senator Lee, Senator Durbin, Senator Heller, Senator Blumenthal, Senator Murkowski, Senator Hirono, Senator Udall of New Mexico, Senator Begich, Senator Baldwin, Senator Heinrich, Senator Markey, Senator Udall of Colorado, Senator Warren, Senator Merkley, Senator Tester, and Senator Schatz.
Our bill will end the dragnet collection of phone records under Section 215 of the PATRIOT Act by requiring that only documents or records relevant and material to an investigation may be obtained, and that they have some particular nexus to a specific foreign agent or power. It will also ensure that the FISA pen register statute and National Security Letters cannot be used to authorize similar dragnet collection by applying the same standard. The bill also adds more meaningful judicial review of Section 215 orders and raises the standard for the government to obtain a gag order for every Section 215 order.
In addition to stopping the dragnet collection of phone records, our legislation will address privacy concerns related to surveillance conducted under the FISA Amendments Act, which allows the government to gather vast amounts of Internet communications content by foreigners located overseas. Given the technological nature of Internet communications, we must vigilantly protect against the inadvertent collection of the contents of the wholly domestic communications of U.S. persons – something that the NSA acknowledged has happened before. Our bill will place stricter limits on this type of collection, and also require the government to obtain a court order prior to conducting ‘back door’ searches looking for the communications of U.S. persons in databases collected without a warrant under Section 702 of FISA.
Finally, the USA FREEDOM Act will require enhanced accountability, transparency, and oversight in the FISA process. Our bill builds on a proposal by Senator Blumenthal to provide for the creation of a Special Advocate who will advocate specifically for the protection of privacy rights and civil liberties before the FISA Court, as well as a process for publicly releasing FISA Court opinions containing significant interpretations of law. Under the bill, public confidence in the government’s activities will also be strengthened by more detailed public reporting about the numbers and types of FISA orders that are issued.
Importantly, this measure requires new Inspector General reviews and imposes new sunset dates. I have long believed that sunset provisions are an important tool because nothing focuses the attention of Congress or the Executive Branch like the looming chance that a law will end. It is important to note that Section 215, which the government is using to conduct dragnet phone records collection, will expire in June 2015 unless Congress decides otherwise. This bill also shortens the FISA Amendments Act sunset by two years, and adds a new sunset for National Security Letters. This aligns all of these FISA sunsets so that Congress can address them comprehensively in 2015, rather than in a piecemeal fashion.
These are all commonsense, bipartisan improvements that will ensure appropriate limits are placed on the government’s vast surveillance powers. The American people deserve to know how laws governing surveillance authorities are being interpreted and will implicate their personal information and activities. The American people also deserve to know whether these programs have proven sufficiently valuable as counterterrorism tools to justify their extraordinary breadth. This legislation will help to repair that trust deficit by providing enhanced layers of transparency, oversight, and accountability to ensure that we are protecting national security while restoring protections for the privacy rights and civil liberties of law-abiding Americans.
I ask unanimous consent that the text of the bill be printed in the Record.
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David Carle: 202-224-3693
Too little, too late?
With all due respect, methinks Jon Stewart sums it up best:
http://www.huffingtonpost.com/2013/10/31/jon-stewart-congress-nsa-spying_n_4180996.html
Where have you been for the last decade, Senator Leahy?
Meanwhile, blogger Marcy Wheeler continues to do an excellent job of parsing public statements by officials and keeping track of what folks knew when at http://www.emptywheel.net/.
Ending warrantless searches
Jon finally got to the NSA story? He’s been a bit slow on this one, too, choosing other things to focus on since his return.
Leahy’s bill seems like the very minimum one could do. Shutting down the NSA entirely seems to be the proper thing to do. None of this spying is for our safety – it’s all turning out to be political, economic, and business related. Taxpayers are both financing it, and being swept up in it.
The latest news is that the NSA is taking everything that goes through Yahoo and Google. Everything. All the mail. All the searches. All the content, and the metadata to connect it all. Because they can.
This goes on every day, even as I type this.
Merkel was fine with spying on citizens until her phone was involved. Obama is lying again (I had no idea we spied on foreign leaders) or is again ignorant (I had no idea…).
You are right that the words being used are very important. Readers should watch for things such as “The press is lying. We deny that X activity is going on under Y program.” That has usually meant that X activity is going on under program Z instead, or that Xa is under Y but Xb is under Z.
The Guardian has daily, ongoing coverage of world events related to the NSA revelations. There’s a stunning amount of news on a daily basis, that seems to be missing from our major media. We get a few big stories here and there, but the Guardian beats this story like a drum.
Hopefully people pepper their reps with demands to stop the spying – on them, their children, their grandparents, and so on. Our previous system of using warrants to do searches of suspicious citizens worked fine.
Perspective on FISA Improvement Act of 2013
Two days after Dianne Feinstein calls for review of surveillance programs, the Senate Intelligence Committee (after secret debate & a secret vote) released a bill that basically codifies bulk data collection. Here’s a blogger’s look at how the language in Feinstein’s press release doesn’t jive w/ what’s in the “reform” bill:
http://www.techdirt.com/articles/20131031/12394625090/feinstein-releases-fake-nsa-reform-bill-actually-tries-to-legalize-illegal-nsa-bulk-data-collection.shtml#comments
And another critique:
http://arstechnica.com/tech-policy/2013/10/feinstein-shows-off-nsa-reform-bill-thats-really-about-the-status-quo/
Excerpt from the latter:
“I’d laugh if I weren’t so offended,” said Jennifer Granick, of the Center for Internet and Society, in an e-mailed comment about Feinstein’s bill. “It legalizes the currently illegal bulk collection of phone records and its language—whether sloppily or intentionally, I don’t know—encourages the NSA to conduct bulk collection of other kinds of records under 215, as well as content, without even the bill’s purported ‘safeguards.'”
The “enhanced criminal penalties” for unauthorized access to data actually criminalizes anyone who accesses a computer “without authorization,” noted Ruthann Robson, professor of Law at City University of New York. “While couched in protecting privacy and data, this provision would also further sanction and chill whistleblowers.”
“The modest improvements [the bill] makes are far outweighed by the damage it does to civil liberties,” said Greg Nojeim, of the Center for Democracy and Technology.
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From his website, here’s Senator Wyden’s statement:
Wyden Statement on Vote in Opposition to Intelligence Committee’s FISA Legislation
Thursday, October 31, 2013
Washington, D.C. – U.S. Senator Ron Wyden (D-Ore.), a senior member of the Senate Select Committee on Intelligence, issued the following statement on legislation reported today by the Intelligence Committee.
“More and more Americans are saying that they refuse to give up their constitutionally guaranteed liberties for the appearance of security: the Intelligence committee has passed a bill that ignores this message. It maintains business as usual instead of ending the bulk collection of Americans’ personal records, closing the back-door searches loophole that allows intelligence agencies to search for Americans’ communications without a warrant, ending the government’s reliance on secret surveillance law, and ensuring that courts can adequately review these authorities and the actions taken under them. I advocated for these principles in the Intelligence Committee, but unfortunately the bill reported today remains far from anything that could be considered meaningful reform.
Instead, the Senate Intelligence Committee approved a bill that would codify overbroad surveillance practices that infringe on the constitutional rights of law-abiding Americans without making America any safer. I voted against this legislation in committee, and I will strenuously oppose any similar attempts to codify overreaching government surveillance. ”
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Let’s see how the US Senate reconciles the bills…come on, USA! Wake up, please.
Invasion porn
In my posts on twitter.com/redactyl I have speculated that Breaking-In and getting beyond the “privacy walls” of email, “Angry Birds” game log-ins, Google & Facebook pages, international phone calls (used an inexpensive overseas #800 service lately?) and email, page traffic & telephone who-when-where-how.long records is most likely addictive… like viewing porn, taking dares or shoplifting.
Hackers admit a superb adrenaline thrill when evading detection; busting into somebody else’s code; and extracting data. The NSA is full of people busting barriers of privacy, just because they know they “have the balls” to try and have the top technology to pull it off. I suspect that they are as addicted to penetrating our privacy (and ANYTHING we think is private) as much as porn addicts are addicted to porn. Legal or ethical have nothing to do with it.
President Obama has admitted in his “reassuring” speech about the NSA to the public that he does not want the data-gathering to stop. Rather (he says) it is important that it all be kept somewhere safe and accessible, just in case somebody might need it some day. He obviously can’t handle the thought of going “cold turkey” from data-snatching… and he leaves it to his successor (whomever THAT might be – Hillary Clinton?) to decide which data and conversations and emails are legal to peer into.
All those data, phone metadata, recordings, and email & Internet records must be destroyed at a finite date in the near future unless it it can be PROVEN (on a case-by-case basis) that retaining it is necessary for a properly-prosecuted criminal or national security case. Otherwise, dear friends, that reckless joking email you made to someone about how “somebody oughta…” will come back to haunt you in the surveillance-state future.
Questionable analogies here
This is an interesting comment about the ballsy thrill of hackers but I’m not sure it’s applicable to the data collecting grunts at the NSA or people who watch porn.
In the first, most of the NSAyers are just doing a job, not suffering from an addiction thrill to surveillance or data collection.
Equally, most people watching porn are not likely suffering from an addiction either. Just because many people enjoy watching explicit sexual content (and likely get a thrill from it), does not mean the majority of them are addicted to it.
No such thing as porn 'addiction,' researchers say
I was surprised to run into this Science Daily research article so soon after my reply comment to the “Invasive porn” comment just above:
Journalists and psychologists are quick to describe someone as being a porn “addict,” yet there’s no strong scientific research that shows such addictions actually exists. Slapping such labels onto the habit of frequently viewing images of a sexual nature only describes it as a form of pathology. These labels ignore the positive benefits it holds.
The research actually found very little evidence — if any at all — to support some of the purported negative side effects of porn “addiction.” There was no sign that use of pornography is connected to erectile dysfunction, or that it causes any changes to the brains of users. Also, despite great furor over the effects of childhood exposure to pornography, the use of sexually explicit material explains very little of the variance in adolescents’ behaviors. These are better explained and predicted by other individual and family variables.
Instead, Ley and his team believe that the positive benefits attached to viewing such images do not make it problematic de facto. It can improve attitudes towards sexuality, increase the quality of life and variety of sexual behaviors and increase pleasure in long-term relationships. It provides a legal outlet for illegal sexual behaviors or desires, and its consumption or availability has been associated with a decrease in sex offenses, especially child molestation.
Clinicians should be aware that people reporting “addiction” are likely to be male, have a non-heterosexual orientation, have a high libido, tend towards sensation seeking and have religious values that conflict with their sexual behavior and desires. They may be using visually stimulating images to cope with negative emotional states or decreased life satisfaction.
Read full article: http://www.sciencedaily.com/releases/2014/02/140212153252.htm